Trump's pick to head whistleblower office comes from group suing EPA

By Chase Gunter

May 31, 2017

President Donald Trump's nominee to lead the whistleblower protection office comes from a legal group that is currently suing the Environmental Protection Agency for access to its employees' encrypted communications.

The Office of Special Counsel is a small, independent agency that handles civil service and whistleblower cases. Trump's pick to head OSC, Henry Kerner, served on the House Oversight and Government Reform Committee for five years before he became the assistant vice president for investigations for the Cause of Action Institute, a conservative oversight group of lawyers that is currently suing EPA. Trump's choice was announced May 26.

In February, the group filed a Freedom of Information Act request to obtain the communication records sent or received by any EPA employee since Jan. 20, along with any approval EPA may have granted its employees to use Signal or similar messaging apps. After not receiving the records, the Institute filed a lawsuit against the agency in March.

The suit claims that "fewer than a dozen" career employees at EPA used the app to "discuss how to respond to officials appointed by President Trump," and alleges the EPA "has withheld records to which CoA Institute has a right."

The complaint specifically states that employees were using Signal to communicate about "work-related issues," which, the Cause of Action Institute alleges, violates the Federal Records Act.

The reports that some career EPA employees have used encrypted apps come in response to Trump's proposal to sharply cut the agency’s funding, the hiring freeze and employees' consternation about the agency’s direction under the Trump administration.

Zachary Kurz, the director of communications at Cause of Action Institute, told FCW in an email that while Kerner collaborated with others on the initial FOIA request, he is "not involved in this ongoing litigation."

As far as the status of the litigation, Kurz said the Institute is "expecting records soon."

"The parties are negotiating further productions, and a briefing is still expected by the end of next month on any remaining issues," he added.

However, the lawsuit might have trouble obtaining the records, because they may no longer exist and because their content may not constitute official agency business.

Bradley Moss, a partner at the Law Office of Mark S. Zaid who specializes in national security and FOIA matters, told FCW that the purpose of apps like Signal "is to wipe the communications… [so] by their very nature, there aren't going to be many records."

Signal does not keep records of the messages on its own servers, so if users delete the messages or the app itself, "it's very likely there isn't going to be anything," Moss said.

Moss added that the other challenge the lawsuit faces is determining whether the communications between the employees in question would be subject to the Federal Records Act and, by extension, to FOIA.

Deleting or not documenting communications of official work business would be a violation of the Federal Records Act, as would using encrypted apps or any attempts to circumvent the law. However, Moss said that based on what he's seen, "I don't get the sense that's what's going on."

"I'm leaning towards the conclusion that [the Signal communications] are not agency records," he said. "It sounds more like the equivalent of water cooler gossip than … anything having to do with their official work."

It's not clear whether EPA would automatically have visibility into its employees' use of encryption apps, according to one federal chief information security officer who spoke with FCW on background. Unless the mobile devices are subject to strict management, the CISO said, users could add unauthorized apps to their phones. Additionally, the official speculated that if feds were so concerned about surveillance that they resorted to encrypted apps for communications, chances are they would have installed those apps on a personal phone rather than on a work phone.

Jason R. Baron, a lawyer at Drinker Biddle and a former director of litigation at the National Archives and Records Administration, said that the content of employees' communications, rather than the application on which they're communicating, would determine a federal record.

Baron added that in the context of employees talking about the broader direction of their agency on their personal devices, "I presume the government has a good case to make those are not federal records, and not subject to FOIA."

As far as Kerner's nomination, Moss said that he "didn't have any objection" to Trump's choice.

"He certainly has a background in oversight that would be helpful … if he views OSC as assisting employees," Moss added. "That's always the concern among whistleblowers.… We've seen OSC misused in the past. It's supposed to stand as the bulwark against retaliation."

Prior to joining FCW, Gunter reported for the C-Ville Weekly in Charlottesville, Va., and served as a college sports beat writer for the South Boston (Va.) News and Record. He started at FCW as an editorial fellow before joining the team full-time as a reporter.

Gunter is a graduate of the University of Virginia, where his emphases were English, history and media studies.